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Lawyer says judicial appointments process unfair

October 17, 2005|Written By Ron Stang - For Law Times

WINDSOR — Criminal lawyer Greg Goulin has gone publicwith his concerns about the province's Judicial Appointments AdvisoryCommittee. He charges that the way he was interviewed for a judicialappointment before the committee was "unfair" and that its process generallybodes ill for those seeking appointments to the bench and could even harm theadministration of justice.

Goulin
said immediately following his interview in June that he had "grave concerns"
about the line of questioning he was subjected to by one committee member. "I
voiced them informally," he told a Windsor, Ont., press conference. "You're
always concerned about destroying the process."

But
when Attorney General Michael Bryant announced Sept. 22 that he had appointed
local Crown attorney Lloyd Dean — who had been short-listed with Goulin for a
position on the provincial bench — Goulin said, "now is the time to raise
concerns." He fired off a letter to the attorney general as well as
appointments committee chair Justice Timothy Culver, regional senior justice in
Hamilton,
claiming the interviewing process was "out-of-line."

Goulin
emphasized he had no argument with Dean's appointment, and in fact said Dean
would make "an excellent judge." But, he added, "it's the process of this
particular committee that's called into question."

The
committee, which was formally established in 1995 under the Courts of Justice
Act, has 13 members, seven of whom are lay appointees. The other six are
divided evenly between the bench and the bar.

Goulin
specifically took exception to the questioning of lay committee member Gail
Stiffler of Kingsville, Ont., near Windsor, charging she had
a "conflict of interest." Goulin said this happened when Stiffler began
questioning him about a high-profile case of his earlier this year and stating
at the outset she was familiar with parties in the case.

Goulin
said at this point the committee chair should have stopped proceedings and
"shut [questioning] down immediately." But Stiffler was allowed to continue and
"proceeded like a cross-examination," about his defence of client Kevin Stiers,
convicted of first-degree murder in the stabbing death of Glen Ivancic.

Goulin
said Stiffler then raised concerns about Goulin's questioning during a
sentencing hearing of the definition of a victim for the purposes of who may
file a victim impact statement. Goulin said she was repeating a popular
misunderstanding, based on an erroneous newspaper report, of a point he had
made during the hearing, which led to much criticism
of him publicly, including editorially in The Windsor Star.

He
said he had been blamed for criticizing victim impact statements of "family and
friends." But in fact he questioned a changed Criminal Code section, which
effectively included as victims "family of friends," suggesting it is too broad
a category.

Goulin
called Stiffler's questioning "inappropriate" and said she should have been
limited to questioning about "the role of victims" generally instead of delving
into a particular case. But he said the questioning has wider ramifications,
not least of which may be bringing the administration of justice into
disrepute.

For
one thing, he said, the Stiers' verdict is under appeal, and in his letter to
Bryant and Culver, he stated that the discussion of such cases is therefore
"poor form for several very good and basic reasons."

Moreover,
he said, Stiffler's questioning as to "why I did certain things" in his defence
of Stiers interferes with solicitor-client privilege. Finally, he said her
questioning could interfere with his client's right to a fair trial.

Goulin
said he decided to go public on Oct. 3, after not getting a response from
Bryant. He said he decided to launch the protest after consulting members of
the bar across the province. He acknowledged his protest might be viewed as
"sour grapes" because he did not win the appointment "and if people choose to
interpret it that way, that's fine."

But
he said he has been practising law almost 30 years, is one of only 87
provincial lawyers certified as a specialist in criminal law, and this year
received the Law Society Medal. He has also been president of the Essex Law
Association and a member of the Canadian Bar Association's national ethics and
professional issues committee.

Goulin
had a warning for others who may apply for a judicial appointment.

"There's
a chill that goes out when this is done among the legal profession," he said,
"a distinct chill that says, 'If you want to apply to become a judge, be very
careful who you represent and how you represent them.'"

Stiffler,
for her part, said she couldn't comment directly, but added, "There is nothing
to criticize about the judicial process in Canada." She said the committee
process is a "wonderful, fair process" of which Ontarians "should be proud."

Culver
told Law Times he cannot respond to the criticisms because of Goulin's comments
regarding the lack of due process for his client "and any motions that he would
bring in that regard would of necessity involve the committee in the litigation
process."

The
committee's Policies and Process Article Four states that committee members
"who have a conflict or a perceived conflict in the nature of a potential bias
or prejudice in regard to a candidate must declare such conflict and refrain
from taking part in the entire process for the vacancy for which the candidate
has applied."

Toronto lawyer Bill Trudell, who served five years on
the committee, defended its process as a "great balance" between public
scrutiny and the old way of appointments made directly by the attorney
general's office. He said the committee is "renowned worldwide for its
apolitical nature and especially for [its] confidentiality."

He
also suggested Goulin, who he respects, had the option of not answering
questions put to him.

Committee
counsel Paul Stern said confidentiality ensures, "full candour within an
atmosphere of mutual courtesy and respect" and that candidates "may be asked
wide-ranging questions and are invited to respond as they wish."